NEWS

WHAT’S HAPPENING AT THE SUPREME COURT THIS TERM?

Here are three cases of great interest which were argued before the Supreme Court this term including notes and observations from the hearings. Of the date of this writing there are yet no opinions filed in these cases, however, the Court will be issuing more opinions over the next few weeks. There is some speculation that because the Court is now one justice short, this may lead the Court to defer some opinions until a new Supreme Court Justice is confirmed

Whole Woman’s Health v. Hellerstedt – Docket No. 15-274

Whole Woman’s Health v. Hellerstedt was argued on March 2, 2016. Whole Women’s Health is a chain of clinics that have brought a constitutional challenge to a Texas law which regulates facilities that perform abortions. It is a significant case in many ways, one being that the case asks the Court to examine the integrity of the “undue burden” balancing test shaped by moderate judges in a compromise ruling in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992). It is also the Supreme Court’s first close look at abortion rights in nine years. The issue presented in Whole Woman’s Health was two-fold: (1) Whether, when applying the “undue burden” standard of Planned Parenthood v. Casey, a court errs by refusing to consider whether and to what extent laws that restrict abortion for the stated purpose of promoting health actually serve the government’s interest in promoting health; and (2) whether the Fifth Circuit erred in concluding that this standard permits Texas to enforce laws that would cause a significant reduction in the availability of abortion services while failing to advance the State’s interest in promoting health – or any other valid interest. The two main clauses at issue in the 2013 Texas law, known as “HB2” are: 1) a requirement that all abortion doctors have a professional privilege to admit patients to a nearby hospital, and 2) a requirement that all abortion clinics upgrade to facilities capable of performing surgery. The petitioner argued that these regulations will effectively eviscerate basic access to abortion in many regions in Texas.

Several courts – including the Seventh and Ninth Circuits – have ruled that the “undue burden” standard demands judicial inquiry into whether abortion regulations purportedly seeking to protect women’s health actually have that effect. This analysis requires the court to weigh the burdens imposed against the health benefits actually achieved. The Fifth Circuit has rejected such a balancing inquiry and insists that courts must assess health regulations on their face.

The hearing on March 2nd was intensely argued by both sides, running twenty-six minutes longer than scheduled. When the argument began the Court disputed whether there was any solid evidence in the record of whether HB2 was, in fact, the cause for the sudden closing of half of all abortion clinics in Texas and would cause even more to close if the Justices upheld the law’s two main clauses. Justice Anthony M. Kennedy, then changed the argument from the reason for closures to a question of the capacity of any remaining clinics to handle the tens of thousands of abortions that women in the state seek every year. Kennedy raised the possibility that the case be sent back to lower courts to allow lawyers to put evidence into the record about that capacity question. This could be seen as a tactic by Kennedy to find a way out of a four-to-four split (with the recent passing of Justice Scalia). Justice Kennedy was a key part of the Court’s ruling in Planned Parenthood of Southeastern Pennsylvania v. Casey.

Stephanie Toti, a lawyer for the Center for Reproductive Rights, speaking for the abortion clinics was questioned at length by Justice Sonia Sotomayor about abortion procedures. Justice Sotomayor went on with questions after Chief Justice Roberts signaled that the lawyer then at the lectern was finished.

“Sure,” Roberts said. After a couple of more minutes of back-and-forth between Sotomayor and Toti, Roberts tried to end the discussion by stating: “Thank you, counsel.”

But Roberts was unsuccessful. Sotomayor began to ask another question about abortions which involves taking abortion pills instead of having a surgical procedure.

When Solicitor General Scott A. Keller stepped to the lectern for Texas, the Chief Justice told him that he would get an extra eight minutes, which is “roughly” what the other side got. “An extra thank you, Mr. Chief Justice,” Keller responded.

At one point late in the argument, as Keller was answering questions from other members of the Court, Justices Thomas and Stephen G. Breyer started to engage in their own conversation about the case.

As Keller’s time wound down, it was Justice Ginsburg who kept questioning Keller despite the Chief Justice’s attempts to close out the Texas solicitor general’s time. She elicited laughter from the audience when she asked Keller, “Is there really any dispute that childbirth is a much riskier procedure than an early stage abortion?” When Justice Sotamayor joined in with more questions for Keller, Justice Kennedy remarked, ” Sonia is off.”

Fisher v. University of Texas at Austin , another review of a Fifth Circuit decision, was argued on December 9, 2015. The issue presented in this case is: “Does the use of racial preferences in undergraduate admissions by the University of Texas violate the Equal Protection Clause?” This case was heard at the Supreme Court two years ago, when a seven-to-one decision returned the case to lower courts for another look, with some guidance. The Supreme Court has now decided to take a second look at affirmative action nationwide and the way it is done at UT-Austin.

Abigail Fisher, the white student who is challenging the use of race in admissions at the university which rejected her application in 2008, was present at oral argument again, as she was for the first round of arguments in her case in October 2012. Fisher, now a twenty-five-year-old financial analyst in Austin, ended up graduating from Louisiana State University. Her lawyer, Bert Rein of Washington, told the Court that the consequences of her “nonadmission” to UT-Austin, where her sister and father had attended, including having to go to “an alternative university.” Also present, Edward Blum, the founder of the Project on Fair Representation, the group behind the challenge, and a UT-Austin graduate himself.

Other appearances at oral argument were Cecilia Marshall, the widow of the late Justice Thurgood Marshall; the Rev. Al Sharpton; and Richard Kahlenberg, the Century Foundation scholar who writes op-eds arguing for the use of socioeconomic factors, rather than race, in admissions to achieve diversity. The Court was missing Justice Elena Kagan, who was sitting out the case again, because of her past involvement with this very case while a government lawyer.

The Justices often try to reinforce each other when questioning advocates during oral argument, even when they are likely on opposite sides of the issue at hand. The university’s lawyer, Gregory G. Garre and Justice Samuel A. Alito, Jr., were scuffling over the role of Texas’s Top Ten Percent Plan, which guarantees admission to state universities to those at the top of their high school classes. Then, surprisingly, Sotomayor came to the aid of her colleague, rather than Garre.

“Mr. Garre, this is the fundamental problem that I think Justice Alito is pointing to, and you’re sort of talking past each other,” Sotomayor said. “So maybe I’ll explain his view.”

As the courtroom laughed, she added, “Strange, isn’t that?”

Alito responded, “I could – I can use the help.”

Sotomayor attempted to summarize what she believed to be Alito’s view, essentially that the university didn’t work enough to see whether those admitted under the Top Ten Percent Plan provided the kind of diversity it sought. “So that’s his view, I think,” Sotomayor said.

“Well, that’s my question,” Alito said, and more laughter erupted.

The most unexpected turn, however, came from the late Justice Antonin Scalia, when he suggested to Garre, “There are there are those who contend that it does not benefit African Americans to — to get them into the University of Texas where they do not do well, as opposed to having them go to a less advanced school, a less — a slower track school where they do well.” Scalia continued, “One of the briefs pointed out that — that most of the — most of the black scientists in this country don’t come from schools like the University of Texas.” Neither Sotomayor nor any of his other colleagues offered to help Scalia “explain his view” on this.

The argument continued for nearly another half-hour, with some more furious exchanges between Justice Sotamayor and attorney Bert Rein, providing no clear resolution in sight for a case that may reach its conclusion by late June, or may yet be bouncing around for years to come.

Foster v. Chatman – Docket No. 14-8349

Foster v. Chatman, was argued on November 2, 2015. The issue presented is whether the Georgia courts erred in failing to recognize race discrimination in jury selection under Batson v. Kentucky in the extraordinary circumstances of this death penalty case. At trial, in 1987, Foster, an eighteen-year-old African American at the time, was convicted of killing an elderly white woman during a burglary in Georgia. During jury selection, the prosecutor used his peremptory strikes to strike all four black potential jurors, and Foster was convicted and sentenced to death by an all-white jury. After jury selection Foster had brought a Batson motion claiming race discrimination in jury selection. Batson v. Kentucky (1986) held that peremptory challenges could not be used in an attempt at “purposeful racial discrimination to bar African Americans from juries.” The prosecution opposed Foster’s motion by giving a multitude of conflicting “race neutral” reasons for striking all of the black jurors, and the trial court upheld the strikes and denied Foster’s Batson motion. But some nineteen years later, in 2006, during state habeas corpus proceedings, Foster’s attorneys obtained the prosecution’s notes from jury selection pursuant to an Open Records Act request, which notes had been previously withheld. The notes revealed a number of new, disturbing, facts: (1) each black juror was marked with a “B” and highlighted in green, which “Represents Blacks”; (2) on the juror questionnaires, the race “Black” was circled; (3) on individual juror cards, the black potential jurors were identified as “B#1,” B#2,” etc.; (4) One potential juror was identified by the prosecution investigator as “if it comes down to having to pick one of the black jurors, Garret might be okay;” (5) A list of “definite NO’s” listed the black potential jurors first and in numerical order.

The Supreme Court has now granted cert. directly from the Georgia Supreme Court’s summary denial of appeal from that Batson motion ruling, suggesting, perhaps, an impatience with waiting for a lengthy federal habeas process to happen. Foster is seeking relief under the 14th Amendment, arguing that the new evidence is a smoking gun proving that race was a huge factor in the juror challenges. Foster (represented by well-known death-penalty lawyer Stephen Bright of the Southern Center for Human Rights) argued that “the evidence of racial motive by the prosecution … is extensive and undeniable,” while the Georgia Attorney General contended that “none of the … new evidence shows an intent to discriminate” and that the federal court must give great deference to the state court’s ruling.

The specter of improper racial influences in administration of the death penalty has long haunted the Court. The Court’s 2015 Term also has an unusual focus on the application of the Eighth Amendment’s “cruel and unusual punishment” clause, by granting review of five cases which involve Eighth Amendment issues, four of them the death penalty.

In June 2015, the Supreme Court’s Term ended with Justice Stephen Breyer’s opinion (joined by Justice Ruth Bader Ginsburg) in Glossip v. Gross, which announced that both Justices now “believe it highly likely that the death penalty violates the Eighth Amendment.” Foster obviously raises concerns apart from the Eighth Amendment, and the Court could decide the case without reference to the death penalty at all. Justice Kennedy, among others, has criticized the summary denial of Batson claims when significant evidence is presented (in Miller-El v. Cockrell in 2003). When Foster is decided, the memory of the Court’s 1986 decision in McCleskey v. Georgia, turning aside questions of race disparity in Georgia’s capital sentencing history, will likely be in the minds of at least some Justices. Eighth Amendment concerns may not be spoken, but they undoubtedly will be present.

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